Filed 8/18/11 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Aimee M. Martinson, Plaintiff and Appellant
v.
James W. Martinson, Defendant and Appellee
No. 20100339
Aрpeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Kapsner, Justice.
Stacy Mae Moldenhauer (argued) and Suzanne Marie Schweigert (appeared), P.O. Box 460, Bismarck, N.D. 58502-0460, for plaintiff and appellant.
Irvin B. Nodland, P.O. Box 640, Bismarck, N.D. 58502-0640, for defendant and appellee.
Martinson v. Martinson
No. 20100339
Kapsner, Justice.
[¶1] Aimee Martinson appealed from an order upon rеmand denying her additional attorney fees and costs in connection with her motions for a protective order and to modify the visitation provisions of a divorce judgment. We reverse and remand, concluding the district court failed to comply with the directions in our prior opinion remanding the case.
I
[¶2] Aimee and James Martinson divorced in North Dakota in 2006. The divorce judgment incorporated the parties’ stipulation, which awarded Aimee Martinson physical custody of the parties’ two minor children, awarded James Martinson visitation, and allowed Aimee Martinson to move with the children to Minnesota.
[¶3] In 2007, the children alleged they had been sexually abused by James Martinson. The allegations were reportеd to Minnesota law enforcement and social services agencies, which began investigations. On April 30, 2007, Aimee Martinson sought and received a protective order from a Minnesota district court prohibiting James Martinson from having any contact with her or the children.
[¶4] On August 9, 2007, while the Minnesota investigations continued, Aimee Martinson moved for an ex parte intеrim order in North Dakota prohibiting James Martinson from having any contact with the children. The order was entered on August 10, 2007, and the Minnesota order was dismissed. In the ex parte interim order, the North Dakota district court directed that Aimee Martinson “is awarded her attorney fees in having to bring this action to protect the children” and directed her attorney to “submit an аffidavit setting forth the amount of attorney fees requested.” Aimee Martinson subsequently submitted an affidavit requesting $17,043.44 in attorney fees and costs for bringing the Minnesota and North Dakota proceedings.
[¶5] The Minnesota authorities completed their investigations in the fall of 2007. The Bloomington Police Department determined the allegations were unsubstantiated, and Dakota County Social Services determined it could not find maltreatment of the children. Both agencies noted the children’s statements had been inconsistent.
[¶6] After the investigations were completed Aimee Martinson moved to modify the divorce judgment, requesting that James Martinson not have visitation until the children’s therapist determined visitation would not be detrimental to them. James Martinson opposed the motion and requested a hearing, which was rescheduled several times. In April 2009 the parties reached an agreement on visitation, stipulating that their respective experts would choose a “reunification therapist” to develop a plan to restore contact between James Martinson and the children, a nanny would accompany the children on longer visits, the parties’ experts would choose a new therapist for the children, and the district court would resolve financial issues regarding attorney fees, costs, and future visitation expenses.
[¶7] A hearing was held on the financial issues, and on May 14, 2009, the district court ordered that Aimee Martinson reсeive $15,735.97 in attorney fees and costs for the Minnesota proceedings. The court denied all other requested attorney fees and costs, finding there had been no modification of the judgment and Aimee Martinson had abandoned her motion, and vacated that part of the August 10, 2007, ex parte interim order that had awarded Aimee Martinson attorney feеs. The district court also denied Aimee Martinson’s motion for relief from the order under N.D.R.Civ.P. 60(b), and she appealed.
[¶8] On appeal, this Court reversed in part and remanded for further proceedings, concluding the district court erred in finding the judgment had not been modified and Aimee Martinson had abandoned her motion, erred in vacating the ex parte interim order, erred in finding Aimee Martinson had failed to provide a sufficient basis for an award of attorney fees, and erred in failing to address other financial issues, including payment of expenses to hire a nanny to attend visitation and future expert expenses.
See
Martinson v. Martinson
,
[¶9] Upon remand the parties submitted briefs, and James Martinson submitted a “Proposed Order Upon Remand.” The Proposed Order first suggested reasons which might support denying attorney fees for the North Dakota ex parte proceedings, and provided three options on that issue for the district court: reinstate the existing award of $15,735.97, award Aimee Martinson’s full requested amount of $17,043.44, or award some other amount. The Proposed Order further suggested that the district court deny any further award of attorney fees or costs for the motion to modify the divorce judgment, citing Aimee Martinson’s “mistaken” belief that James Martinson had abused the children and concluding that James Martinson should not “be made to pay for Aimee’s mistakes whether or not she made them in good faith.” The Proposed Order failed to address the other financial issues the court had been directed to resolve upon remand. The district court signed the Proposed Order as submitted, without indicating which of the listed options it was choosing on the first issue, without addressing the parties’ needs, ability to pay, or whether either party had unreasonably escalated the fees or costs, and without addressing the other unresolved financial issues. Aimee Martinson appealed.
II
[¶10] Aimee Martinson contends the district court erred in failing to award her attorney fees for securing the ex parte interim order in North Dakota.
[¶11] On the prior appeal, we reversed that part of the district court’s May 14, 2009, order which had vacated the award of attorney fees in the ex parte interim order and gave the court the opportunity upon remand to explain why it denied attorney fees for the ex parte interim order in North Dakota.
See
Martinson
,
DECISION OF THE COURT ON ISSUE #1:
(At this point, the court’s options are:
a. Restatement of an award of $15,735.97
b. A [sic] award of $17,043.44 as Aimee requested on Nov 28, 2007.
c. Some other award determined by the court to be fair аnd reasonable.
Although the Proposed Order was clearly submitted with the intent that the court would redraft the order and choose one of the suggested options, the district court inexplicably signed the Proposed Order as submitted without indicating which, if any, of the options it was adopting. Therefore, the Proposed Order does not resolve the issue, and we must reluctantly again remand the matter to the district court for reconsideration of Aimee Martinson’s request for attorney fees for the North Dakota ex parte proceedings.
[¶12] We feel compelled to define the proper scope of the remand and clarify issues which may arise. In response to our directive that the court on remand would have the opportunity to explain why it awarded attorney fees for the Minnesota proceedings but not the North Dakota proceedings,
see
Martinson
,
[¶13] We also wish to clarify that the $15,735.97 in attorney fees previously awarded for the Minnesota proceedings is not subject to revision on remand. The Proposed Order signed by the district court indicated there were three available options: the $15,735.97 previously awarded, the $17,043.44 sought by Aimee Martinson, or “[s]ome other award determined by the court to be fair and reasonable.” The award of $15,735.97 for the Minnesota proceeding was not challenged on the prior appeal,
Martinson
,
III
[¶14] Aimee Martinson contends the district court erred in failing to award attorney fees and costs for the proceedings on her motion to modify the visitation provisions of the divorce judgment.
[¶15] Before the prior appeal, the district court had deniеd attorney fees and costs for the motion based upon its determination that the judgment had not been modified, Aimee Martinson had abandoned her motion, she had not provided a sufficient basis for an award of attorney fees, and James Martinson’s visitation rights would have been impacted had the court granted the motion. We rejected the district court’s findings and reasoning, and specifically remanded for reconsideration of Aimee Martinson’s request for attorney fees and costs under a correct application of the law.
See
Martinson
,
In deciding a request for attorney fees and costs under N.D.C.C. § 14-05-23, the court must balance one рarty’s needs against the other party’s ability to pay and consider whether either party’s actions unreasonably increased the time and expenditures on the case. In determining whether to award costs and attorney fees, fault is a consideration only to the extent one party has unreasonably escalated the fees.
Id. at ¶ 24 (citations omitted). We expressly concluded that “[t]he court failed to correctly apply the law and balance Aimee Martinson’s need against James Martinson’s ability to pay and consider whether either party unreasonably escalated the fees and costs,” id. at ¶ 29, and we remanded for reconsideration of Aimee Martinson’s request for attorney fеes and costs.
[¶16] Despite our clear explanation of the scope of the remand and the relevant law to be applied, the district court ignored our directives and again failed to address the parties’ needs or ability to pay and whether either party had unreasonably escalated the fees and costs. Rather, the court wаndered off on a tangent, providing other justifications for denying attorney fees and costs. The Proposed Order signed by the court attempted to explain the denial of fees and costs with lengthy findings rehashing the allegations of sexual abuse against James Martinson and the ultimate determination by Minnesota authorities that the allegations were unsubstantiated. In dоing so, however, the court did not suggest that Aimee Martinson acted in bad faith in pursuing the motion to modify the judgment or that she had unreasonably escalated the fees or costs of the proceedings. In fact, the court has consistently indicated that Aimee Martinson acted in good faith in bringing the motion.
See
Martinson
,
[¶17] The district court’s conclusion attempts to insert a generic concept of fault into the determination to award attorney fees and costs under N.D.C.C. § 14-05-23. Under the well-settled law of this state, however, fault is a consideration only to the extent one party has unreasonably escalated the fees and costs.
E.g.
,
Martinson
,
[¶18] Because the district court considered improper factors and failed to follow our dirеctions on the prior remand, we again remand for a redetermination of Aimee Martinson’s request for attorney fees and costs for her motion to modify the divorce judgment. We expressly direct that the court address Aimee Martinson’s needs, James Martinson’s ability to pay, and whether either party has unreasonably escalated the fees and costs.
[¶19] We also wish to clarify one further issue which might arise upon remand. A significant portion of Aimee Martinson’s requested costs are fees for her experts employed in this litigation. We note that the parties by stipulation have created a multi-level “superstructure” of experts to design and implement a reunification plan to facilitate resumption of visitation by James Martinson. The stipulation provides that the parties’ experts would oversee the process and jointly select the “reunification therapist” and a new therapist for the children.
See
Martinson
,
IV
[¶20] We expressly directed on the prior remand that the district court address the unresolved financial issues raised by the parties, including payment of expenses incurred to hire a nanny and future expert expenses.
Martinson
,
V
[¶21] We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit. We reverse the “Proposed Order Upon Remand” signed by the court on September 9, 2010, and remand for further proceedings in accordance with this opinion.
[¶22] Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
I concur in the result.
Gerald W. VandeWalle, C.J.
Sandstrom, Justice, dissenting.
[¶23] I respectfully dissent.
[¶24] The fundamental flaw in the majority opinion is that it confuses “good faith” with “reasonable.”
[¶25] In Martinson v. Martinson , we said:
In deciding a request for attorney fees and costs under N.D.C.C. § 14-05-23, the court must balance one party’s needs against the other party’s ability to pay and consider whether either party’s actions
unreasonably increased the time and expenditures
on the case.
Berg [v. Berg]
,
[¶26] A reаsonableness standard is objective—what would a reasonable person have done in the circumstances? By contrast, a good-faith standard is subjective—did the party in question think it was acting reasonably, regardless of whether it was or not when viewed from the perspective of a reasonable person? See Black’s Law Dictionary 762, 1379 (9th ed. 2009) (“Good faith” is a “state of mind consisting in . . . honesty in belief or purpose, . . . faithfulness to one’s duty or obligation, . . . or . . . absence of intent to defraud or to seek unconscionable advantage.” “Reasonable” is “[f]air, proper, or moderate under the circumstances . . . [a]ccording to reason.”).
[¶27] As the district court properly held, when a party acts unreasonably but in good faith, the party is still acting unreasonably. The court found Aimee Martinson unreasonably increased the expenditures. Evidence in the record supports the finding. Her unreasonableness is not obviated by good faith. The district court did not abuse its discretion.
[¶28] The cancellation of the Minnesota hearing merits additional comment. Aimee Martinson cancelled the hearing аnd did not notify James Martinson of the fact. When she cancelled the hearing, she had a duty to inform James Martinson so he would not incur the costs of attending and being represented at the hearing.
[¶29] Finally, I agree that the district court failed to indicate which of three options it was ordering on the first issue addressed. I would remand under N.D.R.App.P. 35(a)(3) (“If an issue or issues have not been tried or, if tried, not determined, the court may remand the case to the district court for a determination of the issue or issues, without relinquishing jurisdiction of the appeal.”).
[¶30] Dale V. Sandstrom